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2009 DIGILAW 1911 (PNJ)

Renu Tiwari v. Balbir Dub

2009-11-05

MEHINDER SINGH SULLAR

body2009
Judgment Mehinder Singh Sullar, J. 1. Having lost die legal battle, petitioner/tenant-Renu Tiwari wife of Rakesh Tiwari (hereinafter to be referred as the tenant) has directed the present revision petition against the impugned order dated 10.01.2007 vide which the Rent Controller has accepted the ejectment petition under Section 13-B of the East Punjab Rent Restriction Act, 1949 (hereinafter to be referred as "the Act") filed by Balbir Dub son of Sohan Lal Dub-respondent-landlord (hereinafter to be referred as the landlord). 2. The matrix of the facts culminating in the commencement, relevant for disposal, of the present revision petition and emanating from the record is, that originally the landlord filed a petition for the ejectment of the tenant from the demised premises invoking the special provisions of Section 13-B of the Act, inter alia, pleading that he is its owner/landlord. It was rented out to the tenant vide agreement dated 30.09.2005 for a period of 11 months which had also expired on 31.07.2006. As per agreement, he sent a notice to the tenant. 3. The case set up by the landlord in brief insofar as relevant was that he is a Non- Resident-Indian and had gone abroad for his settlement. He is residing in Manila along with his wife and two children having foreign passports. He also possesses immigration certificate duly issued by the authorities of Republic of Philippines. Thus, he falls within the definition of an NRI and also a member of NRI Sabha, Punjab. He requires the demised property/shop for his own. bona fide use as he wants to settle in India and start his business of Readymade Garments. 4. Leveling a variety of allegations in all, according to the landlord, he is an NRI and required the demised property for his own personal requirement and is entitled to recover the possession under Section 13-B of the Act. On the basis of aforesaid allegations, the landlord filed the eviction petition against the tenant in the manner indicated hereinabove. 5. Having completed all the codal formalities, the Rent Controller summoned the tenant. As soon as the tenant appeared, in the meantime, she filed an application for leave to contest the ejectment petition, inter alia, pleading that the grounds for ejectment set-forth by the landlord are false and he has not come to the Court with clean hands. 5. Having completed all the codal formalities, the Rent Controller summoned the tenant. As soon as the tenant appeared, in the meantime, she filed an application for leave to contest the ejectment petition, inter alia, pleading that the grounds for ejectment set-forth by the landlord are false and he has not come to the Court with clean hands. According to the tenant that the landlord is not a Non-Resident-Indian and is only a visitor to Philippines, he owns other residential building and shop in the same area, so much so, the tenant has denied the ownership of the landlord as the demised premises is stated to be already sold by him. In all according to the tenant, the landlord is neither a specified landlord (NRI) nor his requirement/need is bona fide. That being so, the tenant prayed that she be granted leave to contest the ejectment petition. She has also filed an affidavit in support of the application. 6. Controverting the allegations contained in the aforesaid application of the tenant and reiterating the pleadings contained his original ejectment petition, the landlord filed reply and prayed for dismissal of the application for permission to leave to defend the ejectment petition. However, the landlord clarified that the other shops are not suitable for his business. 7. The Rent Controller dismissed the application for leave to contest, filed by the tenant and accepted the ejectment petition of the landlord under Section 13-B of the Act and directed the tenant to hand over the vacant possession of the demised premises to him(landlord) within two months vide impugned order dated 10.01.2007. 8. The tenant did not feel satisfied with the composite impugned ejectment order and filed the present revision petition. That is how I am seized of the matter. 9. Having heard the learned counsel for the parties, having gone through the record of the case and after bestowal of thoughts over the entire matter, to my mind, as there is no merit, therefore, the present revision petition deserves to be dismissed for the reasons mentioned herein below. 10. That is how I am seized of the matter. 9. Having heard the learned counsel for the parties, having gone through the record of the case and after bestowal of thoughts over the entire matter, to my mind, as there is no merit, therefore, the present revision petition deserves to be dismissed for the reasons mentioned herein below. 10. Admittedly, the landlord filed the ejectment petition against the tenant invoking the special provisions under Section 13-B of the Act which postulates that wherein an owner is a Non-Resident-Indian and returns to India and the residential building or scheduled building and/or nonresidential building, as the case may be, let out by him or her, is required for his or her use, or for the use of any one ordinarily living with and dependent on him or her, he or she, may apply to the Controller for immediate possession of such building or buildings, as the case may be. Provided that a right to apply in respect of such a building under this Section, shall be available only after a period of five years from the date of becoming the owner of such a building and shall be available only once during the life time of such an owner. Sub-clause 2 further posits that where the owner has let out more than one residential building or scheduled building and/or non-residential building, it shall be open to him or her to make an application under that sub-section in respect of only one residential building or one scheduled building and/or one non-residential building, each chosen by him or her. Meaning thereby, the legislature has conferred a statutory right on such NRIs to immediately recover the possession from their tenants once in a life. 11. The main point urged by learned counsel for the tenant which require adjudication is that whether the landlord is not proved to be an NRI and the Rent Controller committed an illegality in applying Section 13-B of the Act and ordering the ejectment of the tenant or not. To me, it would be expedient to have the definition of NRI at this stage, to resolve this controversy. To me, it would be expedient to have the definition of NRI at this stage, to resolve this controversy. Section 2(dd) of the Act defines "Non-Resident-Indian" means a person of Indian origin, who is either permanently or temporarily settled outside India in either case-for or on taking up employment outside India; or for carrying on a business or vocation outside India; or for any other purpose, in such circumstances, as would indicate his intention to stay outside India for a uncertain period. IT means a person will be deemed to be a Non-Resident-Indian for the purpose of this Act who is either permanently or temporarily settled outside India in either case, for or on taking up employment outside India or for carrying on a business or vocation outside India or for any other purpose, in such circumstances, as is indicated his intention to stay outside India for uncertain period. 12. Such, thus being the legal position now the short and significant question though important arises for determination in this case is whether there is sufficient material to substantiate that the landlord was a specified landlord (NRI) or not in this respect. A bare perusal of the record would go to show that the landlord in order to prove that he is an NRI, has brought on record copy of his Alien Registration Certificate, Testimony Residence Certificate, NRI Sabha Identity Card issued by the NRI Sabha, Jalandhar, Republic of India passport issued by the Indian Embassy in Manila, Philippines, copy of the passports of his son Julebar Dub and daughter Baljit Kaur Dub. 13. However, learned counsel for the tenant has contended with some amount of vehemence that no implicit reliance can be placed on Alien Registration Certificate/Residence Certificate as his stay was for a specific period and not for uncertain period and the Residence Certificate which was issued to the landlord as visitors only and, thus, the landlord cannot be termed as an NRI as such. 14. 14. The argument at the first instance appeared very attractive but when the same was scrutinized in relation to the evidence on record then I cannot help observing that the same is not only devoid of merit but misplaced as well because a bare perusal of Alien Certificate of Registration issued by the Department of Justice Bureau of Immigration, Manila would reveal that landlord-Balbir Dub, a citizen of India has been registered pursuant to the provisions of Section 4 of the Alien Registration Act, 1950 (RA 562) as amended. His date and place of birth was described as 04.10.1969 at Jalandhar. His civil status was also depicted as married and name of his spouse is Jelyn Burgos Dub. The occupation of the landlord has also been depicted as business. Date and status of admission is Adm. Mla 08.03.1994 as 9a. No doubt, as per note appended thereto,(his Adm. status changed from 9a to Sec. 13a approved by the BOC dated 03.12.2001), his stay was upto 03.12.2002 and sequelly, it is mentioned in the Residence Certificate that it was issued to the visitors on 03.12.2001. These notes incorporated in these certificates were mentioned at that point of time but it stands proved on record that the landlord stayed and lived there with his family till he returned to settle in India. 15. Thus, it is proved on record that the landlord was admitted on 08.03.1994 as a businessman in Alien Certificate of Registration and Certificate of Residence was issued to him on 03.12.2001 coupled with his affidavit wherein he has stated that he is an NRI and has gone abroad for settlement and residing in Manila and two children were born and residing there having foreign passports issued by the authorities of Philippines are sufficient to prove his NRI status. Since it stands proved on record that the aforementioned certificates were issued to the landlord at that point of time and as he resided in Manila with his family, thereafter, till he returned to settle in India so the alleged notes described in the certificates recorded at the time of issuance would not come to the rescue of the tenant and cannot, in any way, affect his status as NRI as urged on behalf of the tenant. 16. The matter did not rest there. 16. The matter did not rest there. Not only that the landlord has produced the Alien Certificate and Certificate of Residence issued by the Philippines authorities, he has also produced on record NRI Sabha Identity Card issued by the NRI Sabha, Jalandhar, his Republic of India passport issued by the Indian Embassy in Manila, Philippines, copy of the passports of his son Julebar Dub and daughter Baljit Kaur Dub issued by the Republic of Philippines, where they were shown to be Filipino national. Moreover, his wife is also residing in Philippines. Hence, if the entire contents of the documents mentioned hereinabove are put together then conclusion is inescapable that it stands proved on the record that the status of the landlord squarely covered under the definition of Section 2(dd)of the Act. 17. Thus, it would be seen that it stands proved on record that the landlord is a person of Indian origin and settled outside India where he was described as businessman and his family is residing there. Once that is so proved on record, then it cannot possibly be saith that the landlord is not an NRI as urged by the learned counsel for the tenant. Therefore, in my view, the Rent Controller has rightly recorded a finding based on the cogent material consistent with his statement contained in the application /under Section 13-B of the Act and affidavit that the landlord is an NRI as contemplated under Section 2(dd) of the Act. Hence, the contrary arguments of the learned counsel for the tenant stricto-sensu deserve to be and are hereby repelled in the obtaining circumstances of the case. 18. Faced with the situation, another feeble argument of the learned counsel for the tenant that since the landlord has not produced any material about the nature of work to be started by him in the shop in dispute and that he owned other shops in Urban Estate, Jalandhar, therefore, his requirement is not bona fide, again has no force. Because the landlord has specifically pleaded that he is a Non-Resident-Indian, required the demised property/shop for his own bona fide use as he wants to settle in India to start his business of Readymade Garments. Because the landlord has specifically pleaded that he is a Non-Resident-Indian, required the demised property/shop for his own bona fide use as he wants to settle in India to start his business of Readymade Garments. Moreover, he has clarified in his reply to the application filed by the tenant for leave to contest the petition that the remaining shops are far away from Kapurthala road where the shop in question is located. The shop in question is ideally suited for opening the business of Readymade Garments. Furthermore, Section 13-B of the Act confer a special right on the landlord to get atleast one building of his own choice vacated. Under these circumstances, it cannot possibly be saith that the requirement of the landlord is not bona fide. So, in this view of categoric stand of the landlord, non-mentioning of other particulars pales into insignificance in this respect. 19. Moreover, to my mind, the landlord is not strictly required to prove bona fide requirement as contained under Section 13 of the Act and underlying legislative intent indicated in Section 13-B of the Act. The legislative intent for setting up of a special procedure for NRI-landlord is obvious and distinct from general provision of bona fide requirement under Section 13 of die Act. 20. According to Section 18-A of the Act, the Controller to take up the matter on day-to-day basis till the conclusion of the hearing of the ejectment petition. The decision of the Controller to be final and does not provide any appeal or second appeal against the order of eviction. A specified landlord (NRI) is permitted to file an application for ejectment only once during his life time. Sub-section (3) of Section 13-B of the Act imposes a restriction that he shall not transfer it through sale or any other means or lease out the ejected premises before the expiry of a period of five years from the date of taking possession of the said building. 21. Not only that if there is a breach of any of the condition, the tenant is given right of restoration of possession of the said building and if the landlord let out the building or any portion to any other person except the evicted tenant and on any contravention thereof he shall be liable for punishment of imprisonment for a term which can be extended upto six months. These restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine. Moreover, such statement made by the specified landlord shall be deemed to be admitted by the tenant in view of legal provisions contained in Section (4) of Section 18-A of the Act. 22. An identical question arose for determination before Honble Apex Court in case titled as Baldev Singh Bajwa v. Monish Saini, (2005)12 S.C.C. 778. Having interpreted the definition of NRI contained under Section 2(dd) of the Act, provisions of Sections 13-B, 19(2-B), 18-A and other relevant provisions of the Act, it has authoritatively been held that under such circumstances, the landlord would be NRI (specified landlord) and his need cannot be termed as not bona fide unless a strong case is made out in this respect. Learned counsel for the tenant miserably failed to point out how and in what manner the need of the landlord is not genuine as contemplated under Section 13-B of the Act. To me, the Rent Controller has rightly negatives these contentions of the tenant vide the impugned order. Therefore, no fault could be found with the impugned order which is hereby affirmed particularly when it is now well-settled proposition of law that it is not the province of this Court to dislodge the finding based on material recorded by the Rent Controller unless the same is perverse, arbitrary and without jurisdiction. No such irregularity or patent illegality has been pointed out by the learned counsel for the tenant in the impugned order. 23. No other point worth consideration has been urged or pressed by the learned counsel for the parties. 24. In the light of the aforesaid reasons, as there is no merit, therefore, the present petition is hereby dismissed with no order as to costs.